Opinion
C084261
04-05-2018
THE PEOPLE, Plaintiff and Respondent, v. TRISHA MARIE BATES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF161332)
While K. Y. was away on an extended trip, defendant Trisha Marie Bates moved into K. Y.'s house with her family, stripped it bare, and vandalized the property, causing over $30,000 in damage. Defendant pled no contest to first degree burglary in exchange for dismissal of several remaining counts and one chance at completing a residential treatment program. According to the terms of the plea agreement, if defendant successfully completed the residential treatment program, she would receive probation; if she failed to complete the program, she could be sentenced to the maximum term of six years. Defendant was terminated from the treatment program before completion, and the court sentenced her to six years in state prison.
On appeal, defendant contends that her right to due process was violated because no evidence shows that she was properly informed of her obligations in the treatment program or that she willfully violated the treatment program's rules to justify her termination. She also argues that imprisoning her for being terminated from the treatment program without notice of the alleged violation, disclosure of the evidence against her, or a revocation hearing violates due process and equal protection. Because defendant did not raise any of these issues in the trial court, she also asserts an alternative ineffective assistance of counsel claim should we find she forfeited the issues below.
We conclude that defendant was required to obtain a certificate of probable cause under Penal Code section 1237.5 in order to raise the above issues on appeal. Because defendant failed to obtain the necessary certificate, none of her issues are cognizable on appeal. We therefore dismiss the appeal in its entirety.
Further undesignated references are to the Penal Code.
FACTS AND PROCEEDINGS
Following a three-week trip, K. Y. returned to her home in Olivehurst to find two strange cars parked in the driveway, trash in front of the house, and paper covering the garage door windows. When deputies responded to the home, Suzanne Duvall answered the door and told them she was staying in the garage with permission from defendant and her husband. Defendant and her husband were taken into custody, and Child Protective Services was called to take care of defendant's three children who were supposed to return shortly from school.
After walking through the house, K. Y. reported numerous items missing from the home, including two couches, a sofa, a coffee table, a bunk bed, two twin beds with box springs and bedding, a computer table, six window coverings, a desk, a dining room table and chairs, dishes and glassware, four car tires, a showerhead, a flat screen television, a Nintendo Game Cube system, paperwork, and a bedroom door. The interior of the house had also been damaged. Bedroom walls were spray painted, a window and sliding glass door were broken, the carpet was stained, the microwave broken, and there was a hole in the garage wall. Drug paraphernalia was found in the garage and master bedroom. The total cost of damages and items stolen from the house was $33,809.86.
Defendant told police that her husband had signed a rental agreement for the property and denied knowing the house belonged to someone else. She stated the home had no furniture or property in it when they moved in.
On September 21, 2016, defendant agreed to plead no contest to first degree burglary with a Harvey waiver in exchange for the dismissal of the remaining counts and "1 chance at a residential treatment program." Defendant initialed next to a section of the plea form entitled "Questions." That section provides: "I have no further questions of the court or of my attorney with regard to my plea and admissions in this case, any of the rights, or anything else on this form."
People v. Harvey (1979) 25 Cal.3d 754.
The plea form indicates that the prosecutor would agree to strike defendant's prior strike conviction. At the plea hearing, however, the court noted that defendant did not have a strike and it struck that portion of the agreement from the plea.
The plea agreement form also included an "Addendum A," which defendant signed and dated. "Addendum A" stated defendant's understanding and agreement to several terms, including, "2. Judgment and sentencing will be continued to a date in the future so that I may participate in a residential rehabilitation treatment program of at least six (6) months in duration. [¶] 3. I will only be allowed one (1) attempt at completing the residential rehabilitation program of at least six (6) months in duration. [¶] 4. If I am removed from the program for any reason prior to its completion or if I leave the program for any reason prior to completion then my case will be scheduled for judgment and sentencing and I could receive up to 6 years in state prison." (Italics added.)
When taking defendant's plea on September 21, the court explained and defendant acknowledged that she would be given one opportunity in a residential treatment program; if she successfully completed the program, she would receive probation. The court specifically advised defendant: "You'll be given one chance at residential treatment. If you successfully complete the program, then the People have agreed that you would receive an unusual case finding and receive probation." Defendant acknowledged that she understood the terms of the plea.
Following defendant's no contest plea, the parties returned to court on September 30, 2016. Defense counsel informed the court that defendant had been accepted at the Salvation Army program in San Francisco for rehabilitation, and the prosecutor agreed that she be released to the rehabilitation program for between six and 12 months as determined by the program. During the hearing, the court explained to defendant that she was "going to have one opportunity to successfully complete the program. Please realize that." Defendant indicated that she understood.
The court continued: "You will get one attempt at completing the residential treatment program of a minimum of six months in duration. The actual duration will be determined by the program. [¶] Please realize if you leave the program, you have to be back here within 48 hours. [¶] If they kick you out, you have to be back here within 48 hours. And you've given up your right to earn good time/work time conduct credits while in the program." The court then explained that if defendant "successfully complete[d] the residential treatment program, [she would] get [her] actual credits. Failure to complete the program will result in [a state prison sentence]."
The court erroneously described an eight-year sentence that would have applied had defendant had a strike prior. The judge who accepted defendant's plea at the plea hearing, however, modified the plea agreement and potential prison sentence to six years rather than eight years given that defendant did not actually have a strike prior. Defendant ratified the plea modification. --------
Defendant was admitted to the treatment program on October 3, 2016. Among other things, she was required to attend six AA/NA meetings per week, weekly drug and alcohol education sessions, weekly individual and group counseling (including parenting and anger management), weekly Bible studies, and twice weekly chapel services. She was also required to work 32 hours per week in the Salvation Army's work therapy program. She was subject to random drug testing and breath testing.
Defendant was discharged from the program in December 2016 for fraternizing. Following her dismissal, the record shows she placed herself on the court's calendar within 48 hours of her termination from the program.
At a hearing on December 27, 2016, her counsel informed the court: "[Defendant] was discharged from the program on Friday for fraternizing. And she is here to turn herself in within 48 hours of release." When the court asked what her alternative was to the program, the prosecutor responded, "[g]ets referred for judgment and sentencing." After a brief, unreported discussion between the trial court and counsel, the parties agreed to see if defendant was eligible for the Yuba County drug court program. The court referred the matter to probation to determine defendant's eligibility and continued the matter to January 10, 2017.
Probation submitted a letter to the court addressing defendant's prior convictions that would potentially disqualify her from the drug court program. Defendant told the probation officer that she was terminated from the Salvation Army program for fraternizing and that she reported to court as ordered.
At the January 10 hearing, based on probation's report, the court expressed some concern over defendant's eligibility for the drug court program which necessitated the approval of the district attorney. The prosecutor informed the court that the district attorney did not believe defendant was suitable for drug court. Without the district attorney's approval, and based on other concerns in the probation report, the trial court determined drug court was not an available option. The court referred the matter to probation for a presentence report for purposes of judgment and sentencing.
Probation interviewed defendant for the presentence report. She told the probation officer that she was terminated from the rehabilitation program for fraternizing. She claimed a girl seated behind her had dropped a note to one of the men in the program and that she picked up the note and was "caught in the cross fire."
At the sentencing hearing on February 6, 2017, the court considered the presentence report as well as the arguments of counsel. Defense counsel requested the midterm because "[defendant] was discharged from the program for a rather minor reason." He stated: "She obviously didn't follow the rules and, you know, was terminated as a result, but it was due to fraternization in which she inadvertently picked up someone else's note. I believe this is a pretty minor reason to be discharged from the program that she was doing pretty well in up to that point." Counsel also cited other mitigating factors, including that defendant resolved the matter at an early stage, had a criminal history that was not "terrible," and had successfully completed felony probation in the past.
The prosecutor asked the court to impose the upper term as recommended in the probation report. After questioning defendant's story as to why she was discharged from the treatment program, the prosecutor noted that "the cold hard fact is she was terminated." The prosecutor cited defendant's numerous prior felony convictions, and the fact that this was an extremely egregious first degree burglary case -- defendant stripped the victim's house bare. After finding aggravating factors outweighed the factors in mitigation, the court sentenced defendant to the upper term of six years in state prison.
Defendant timely appealed. On the preprinted notice of appeal form, defendant checked the box stating that her appeal "challenge[d] the validity of the plea or admission." She also checked the box labeled "[o]ther basis for this appeal" and handwrote that the appeal was "based on the sentence matters occurring after the plea that do not necessarily affect the validity of the plea but challenges the validity of the matters and or actions occurring after the agreement plea was entered." The trial court denied her request for a certificate of probable cause.
DISCUSSION
On appeal, for the first time, defendant raises several challenges to the trial court's revocation of her conditional release after it implicitly found she violated the terms of her release by failing to complete the rehabilitation program as ordered. She argues that insufficient evidence supports the violation finding because no evidence showed she knew the Salvation Army program rules or that she willfully violated them. She also argues that the term "fraternization"-- the apparent reason she was terminated from the treatment program -- is vague, that she never received written notice of the claimed violation or notice of the evidence against her, which violated due process, and that she was not afforded a revocation hearing given to probationers in violation of equal protection. Recognizing that she did not raise any of these issues below, defendant alternatively argues that her counsel was ineffective for not raising them.
Before considering the merits of defendant's claims, we first address the People's argument that the appeal should be dismissed because defendant admitted to violating a condition of her release and the trial court denied her a certificate of probable cause. Defendant, in a footnote in her reply brief, counters that a certificate of probable cause was not required because she did not admit she violated her release conditions.
Although defendant was not placed on formal probation when conditionally released to the treatment program, both parties agree that her situation is analogous to someone released on probation. We likewise agree that defendant's conditional release was similar to probation.
Section 1237.5 provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." (See also Cal. Rules of Court, rule 8.304 (b) [certificate of probable cause required for appeal after admission of probation violation].) Section 1237.5 has as its purpose to promote judicial economy by screening out wholly frivolous guilty and nolo contendere plea and violation of probation admission appeals before time and money are spent on such matters as the preparation of the record on appeal, and the appointment of appellate counsel, and, of course, consideration and decision of the appeal itself. (People v. Mendez (1999) 19 Cal.4th 1084, 1095.)
It is well settled that "[a] certificate of probable cause is a condition precedent to any appeal within its scope, and the defendant must comply with all statutory requirements." (People v. Thurman (2007) 157 Cal.App.4th 36, 41.) Where an appeal raises certificate issues -- questions going to the legality of the proceedings, and, specifically, the validity of a defendant's guilty plea or admission of probation violation, section 1237.5 requires a certificate of probable cause before an appellate court may determine the merits of the appeal. (People v. Mendez, supra, 19 Cal.4th at p. 1100; People v. Billetts (1979) 89 Cal.App.3d 302, 307 ["[w]here a defendant is attacking the validity of [an admission of violation of probation], a certificate of probable cause is required under the express terms of section 1237.5"].) With that said, section 1237.5 contains an exception: The defendant may take an appeal without a statement of certificate grounds or a certificate of probable cause if he does so solely on noncertificate grounds, which go to postplea matters not challenging his plea's or admission of probation violation's validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5. (Mendez, at p. 1096.) Absent a certificate of probable cause, then, an appellate court may decide noncertificate issues but must decline to address certificate issues. (Id. at p. 1099.)
It is undisputed that the trial court denied defendant a certificate of probable cause here. The question thus becomes whether defendant admitted violating the terms of her release such that section 1237.5's certificate of probable cause requirement applies. If defendant did admit a violation, we must then decide whether the arguments she raises on appeal qualify as certificate or noncertificate issues. We turn to those questions now.
In determining whether defendant admitted a violation of the terms of her release, we first consider the actual condition imposed by the court. The record shows defendant was allowed only one attempt at completing a residential rehabilitation program, and if she was removed from the program for any reason prior to its completion or if she left the program for any reason prior to completion, the court could sentence her up to six years in state prison, the maximum prison term allowed.
The plea agreement form expressly states that defendant agreed to plead to the burglary charge "for 1 chance at a residential treatment program." If she "successfully complete[d] the program," defendant was to receive probation; if she "fail[ed] to complete the program, [her] plea becomes S/U," meaning straight up. Defendant initialed the section describing the above terms.
"Addendum A" to the plea form, which defendant signed and dated, states: "3. I will only be allowed one (1) attempt at completing the residential rehabilitation program of at least six (6) months in duration. [¶] 4. If I am removed from the program for any reason prior to its completion or if I leave the program for any reason prior to completion then my case will be scheduled for judgment and sentencing and I could receive up to 6 years in state prison."
At the plea hearing, the court explained to defendant that under the terms of the plea, "[she would] be given one chance at residential treatment. If you successfully complete the program, then the People have agreed that you would receive an unusual case finding and receive probation. [¶] . . . [¶] If you fail to complete the program, it becomes straight up and you'd be looking at six years in state prison." Defendant acknowledged that she understood and accepted the terms of the plea.
At the sentencing hearing, the court again explained: "Okay. [Defendant], you're going to have one opportunity to successfully complete the program. Please realize that." Defendant nodded her head in assent.
The record makes clear that the release condition imposed on defendant was that she complete the residential treatment program. The condition was not, as defendant implicitly argues, that she not fraternize in violation of the program's rules. (People v. Bravo (1987) 43 Cal.3d 600, 607 [The reviewing court interprets a court's probation condition based on "what a reasonable person would understand from the language of the condition itself"].)
Having identified the condition with which defendant was required to comply, we turn next to whether she admitted violating the condition. Although defendant argues that she did not, the record shows otherwise.
Defendant voluntarily placed herself on the court's calendar after she had been terminated from the Salvation Army program. At the subsequent hearing, when the court asked whether defense counsel knew her status in the program, counsel stated: "She was discharged from the program on Friday for fraternizing. And she is here to turn herself in within 48 hours of release." Defendant did not object to her counsel's representation. Nor did she object when the court quoted from the minute order from the sentencing hearing that states, "Defendant is advised she will have one opportunity to complete the program," and implicitly found that she failed to complete the program given that she had turned herself into the court.
Defendant also later told the probation officer, who was preparing a report at the court's request to determine if she was eligible to participate in drug court, that she was terminated from the program for fraternizing. The same admission is included in the probation officer's presentence report. (People v. Garcia (1977) 67 Cal.App.3d 134, 138 ["[A]t a probation revocation hearing the violation is ordinarily established by the probation officer's report. . . . The probation report alone, if not rebutted or impeached, is a sufficient showing to support a revocation and sentence"].)
By placing her matter on the court's calendar so she could turn herself in for sentencing and repeatedly representing to the court that she had been terminated from the rehabilitation program, defendant effectively admitted that she did not successfully complete the program. Given the totality of the circumstances, there was no factual dispute as to whether defendant violated the condition of her release; the court was justified in revoking her conditional release. (§ 1203.2, subd. (a) [§ 1203.2 authorizes a court to revoke probation or a conditional sentence if the interests of justice so require and the court, in its judgment, has reason to believe that the person has violated any of the conditions of his or her probation or release]; People v. Johnson (1993) 20 Cal.App.4th 106, 110 [" 'When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period' "]; People v. Urke (2011) 197 Cal.App.4th 766, 772 [" 'Probation revocation proceedings are not a part of a criminal prosecution, and the trial court has broad discretion in determining whether the probationer has violated probation' "].)
Our conclusion that defendant admitted violating the terms of her conditional release limits the issues we may consider on appeal since she did not obtain a certificate of probable cause under section 1237.5. (People v. Billetts, supra, 89 Cal.App.3d at p. 308.) In Billetts, for example, the defendant appealed without a certificate of probable cause after admitting a probation violation. (Id. at pp. 305-306.) The court found that in the absence of a certificate of probable cause, it could not consider defendant's contentions that he was deprived of proper notice of a prerevocation hearing, deprived of the hearing itself, and not informed of the consequences of an admission of violation because all those issues related to matters which occurred prior to and affected the validity of his admission of violation. (Id. at p. 308.) The court, however, could consider defendant's contentions that the sentence imposed constituted cruel and unusual punishment and that the sentence was invalid because the court did not pronounce judgment. (Ibid.)
Likewise, in Mendez the Supreme Court found that because the defendant did not timely obtain a certificate of probable cause, it could not consider whether the trial court erred in failing to hold a hearing on the defendant's mental competence prior to accepting his guilty plea, and whether his counsel was ineffective for failing to request such a hearing. (People v. Mendez, supra, 19 Cal.4th at pp. 1092, 1100.) In the court's view, those issues were indisputable certificate issues inasmuch as they were questions going to the legality of the proceedings, and, specifically, the validity of the defendant's guilty plea. (Ibid.) By contrast, the defendant's claim that the court miscalculated his presentence custody credits was not a certificate issue because on its face it presented a postplea question not challenging the guilty plea's validity. (Id. at p. 1100.)
In this case, defendant raises issues similar to those found in Billetts and Mendez to be certificate issues. Defendant's contentions that no evidence showed she was informed of the program rules, that the term fraternization under those rules is vague, that she was deprived of written notice of the claimed violation and notice of the evidence against her, that she was denied a revocation hearing, and that her counsel was ineffective for failing to request a hearing or otherwise object all relate to matters which occurred prior to and affect the validity of her admission of violation. (People v. Billetts, supra, 89 Cal.App.3d at p. 308 [deprivation of proper notice of prerevocation hearing, deprivation of the hearing itself, and failure to inform of the consequences of an admission of violation of probation constituted certificate issues requiring certificate of probable cause]; People v. Mendez, supra, 19 Cal.4th at p. 1100 [the defendant's claims that the court failed to hold a hearing on his mental competence and that his counsel provided ineffective assistance when he failed to request such a hearing were certificate issues].) Because defendant admittedly did not obtain a certificate of probable cause, the issues she raises are not reviewable on appeal.
DISPOSITION
The appeal is dismissed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.